FARAJPOUR v. UNIVERSITY OF SOUTHERN CALIFORNIA

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Court of Appeal, Second District, Division 3, California.

Masoud FARAJPOUR, Plaintiff and Respondent, v. The UNIVERSITY OF SOUTHERN CALIFORNIA, Defendant and Appellant.

Civ. No. B037903.

Decided: June 07, 1990

Horvitz & Levy, David S. Ettinger and Frederic D. Cohen, Encino, for defendant and appellant. Paul & Stuart and Anthony Stuart, Santa Monica, Greene, Broillet, Paul, Simon & Wheeler, Michael L. Goldberg and Antony Stuart, Los Angeles, for plaintiff and respondent.

Defendant and appellant The University of Southern California (USC) appeals a judgment following a $1,000,001 jury verdict in favor of plaintiff and respondent Masoud Farajpour (Farajpour) on his action for malicious prosecution.

Initially, we consider whether Farajpour presented sufficient evidence of a favorable termination of the underlying criminal proceeding which was dismissed in the interest of justice, so as to allow his malicious prosecution count to go to the jury.   We find the trial court erred in denying USC's motion for a directed verdict on that count.   We deal with the resultant issue of whether its error in instructing on that count requires a new trial as to the remaining counts.   Because it is reasonably probable the sizeable verdict rests at least in part on evidence adduced on the improper malicious prosecution count, the case is reversed for a new trial as to the other counts.

This outcome raises the further issue as to whether the trial court, sua sponte, should have directed special verdict forms to the jury so as to preserve the verdict and prevent a retrial.   We hold trial courts have a sua sponte duty to direct special verdicts or special findings in appropriate cases.

FACTUAL & PROCEDURAL BACKGROUND 1

On July 18, 1983, Cochran, a USC uniformed security guard, responded to a Penal Code section 415 call (disturbing the peace) that someone was tampering with a “Denver boot” immobilization device on an improperly parked car.   At the scene, Farajpour and his friend Muraoka were kicking the boot and told Cochran they thought someone had put the device on Muraoka's car as a joke.   Cochran advised them the boot belonged to USC Security.   Farajpour stated there was nothing on the car to so indicate.   Cochran asked Farajpour, a native of Iran, for his identification and from where he came.   Farajpour perceived Cochran's inquiry and the next remark, “maybe they do crazy things like that where you come from,” as racist, and declined to answer Cochran's further questions.

Cochran was joined by another guard, Thyret.   Farajpour complained to Thyret that Cochran was a racist.   Thyret asked for Farajpour's identification.   Farajpour removed his wallet and showed Thyret his ID, but refused Thyret's request that he remove his ID from his wallet and hand it over.   Thyret reached for his handcuffs and said he was going to take Farajpour aside.

Farajpour brushed past the guards and began to walk away.   Thyret and Cochran followed.   Cochran tried to stop Farajpour, who resisted by shoving Cochran.   Cochran attempted to walk Farajpour up against a tree and used his baton and “standard take-down technique” to subdue Farajpour.

Once Farajpour was down on the ground, Pugh, another guard who had arrived, assisted in handcuffing him.   Thyret had Farajpour in a choke-hold while the others handcuffed him.

Farajpour was taken to the campus security office and held until Cochran completed a citizen's arrest report based on an alleged violation of Penal Code section 242 (battery).   From there, he was taken to the LAPD's Southwest Station, then downtown, and next to the county hospital for medical treatment.   Farajpour thereafter was returned to the downtown station for booking and was released on bail later that evening.

On July 26, 1983, Sergeant Aviles of the USC Security Department, who investigated the incident, filed a report concluding USC personnel “having failed to identify the defendant, were acting properly in deciding to take him into custody, especially as he was attem[p]ting to leave the scene.”   The report further disclosed that Cochran had been counseled regarding his questions and statements as to Farajpour's ethnicity and Thyret had been counseled “regarding application o[f] non-department approved holds.”

On July 29, 1983, Farajpour met with Molloy, head of the USC Philosophy Library, and Jarvis, Farajpour's supervisor.   Molloy pressed Farajpour to sign an agreement promising not to sue USC in exchange for USC's dropping the criminal charge against him.   Farajpour said he might sign if USC were to allow him a role in investigating the incident.   USC declined Farajpour's condition.

Farajpour was arraigned on the criminal charge on August 1, 1983 and plead not guilty.   Trial was set for August 31, 1983.   Trial was continued to October 12, then to November 4, November 9, November 15, and November 17, 1983.   Farajpour's deputy public defender directed him to meet with the deputy city attorney on the case.   Farajpour met with the prosecutor without his attorney.   At the hour-long meeting, the prosecutor reviewed her file and questioned Farajpour about the July 18 incident.   After the November 17, 1983 meeting, she moved in the trial court on the same date to dismiss the case pursuant to Penal Code section 1385 (section 1385) “in the interest of justice,” which motion was granted.

On May 18, 1984, Farajpour filed suit against USC alleging three causes of action:  assault and battery, intentional infliction of emotional distress (IIED) and negligence.   Farajpour subsequently amended his complaint to add a malicious prosecution count.

At the conclusion of Farajpour's opening statement at trial, USC moved for nonsuit on the malicious prosecution count on the ground the dismissal in the interest of justice was not evidence of a favorable termination of the criminal proceeding.   The trial court denied the motion, ruling the question of favorable termination was one of fact for the jury.

At the conclusion of the evidence, USC moved for a directed verdict on the same ground as the nonsuit motion.   This motion likewise was denied.

The case went to the jury on all causes of action.   The parties stipulated that Farajpour had incurred $17,672 in medical expenses to treat the injuries incurred in the incident.   In addition, Farajpour's orthopedic surgeon testified an expected fourth surgery would cost about $10,000.   The jury returned a general verdict in Farajpour's favor, awarding $200,000 in compensatory damages and $800,001 in punitive damages.   USC's motion for new trial was denied.   USC appealed.

CONTENTIONS

As to the main issue on this appeal, USC contends the trial court erred in submitting the malicious prosecution cause of action to the jury.   In addition, USC contends the trial court erroneously defined “malice” for the jury, permitting the jury to make an improper award of punitive damages, and it challenges the constitutionality of punitive damages.

DISCUSSION

1. General principles.

 Preliminarily, we note that malicious prosecution actions continue to be disfavored due to the potential for deterring litigants with meritorious claims.  (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872–874, 254 Cal.Rptr. 336, 765 P.2d 498.)   However, such actions will be upheld when the requisite elements are satisfied.   These elements require the underlying case (1) to be commenced by or at the direction of the defendant and pursued to a legal termination in the plaintiff's favor;  (2) to be brought without probable cause;  and (3) to be initiated with malice.  (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50, 118 Cal.Rptr. 184, 529 P.2d 608.)

Due to the disfavored status of the tort, the component of a favorable termination, like the other elements, historically has been carefully circumscribed.  (Sheldon Appel Co., supra, 47 Cal.3d at p. 872, 254 Cal.Rptr. 336, 765 P.2d 498.)

 A favorable termination is a term of art with a particularized legal meaning.  (See Sun 'N Sand, Inc. v. United California Bank (1978) 21 Cal.3d 671, 682, 148 Cal.Rptr. 329, 582 P.2d 920.)   To prevail, not only must a plaintiff establish a termination of the underlying case, but also that the termination “tends to indicate the innocence” of the accused in the underlying action.  (Jaffe v. Stone (1941) 18 Cal.2d 146, 150, 114 P.2d 335;  Lackner v. LaCroix (1979) 25 Cal.3d 747, 750, 159 Cal.Rptr. 693, 602 P.2d 393.) 2

Our Supreme Court in Jaffe, supra, discussed the element of favorable termination at length.   It held:  “[I]f the criminal proceeding goes to trial, it is ordinarily necessary, as a foundation for a malicious prosecution suit, that the plaintiff should have been acquitted.  [Citation.]  The same fundamental theory is applied in testing a dismissal or other termination without a complete trial on the merits.   If it is of such a nature as to indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the requirement.   If, however, the dismissal is on technical grounds, for procedural reasons, or for any other reason not inconsistent with his guilt, it does not constitute a favorable termination.”  (Jaffe v. Stone, supra, 18 Cal.2d at p. 150, 114 P.2d 335, italics added;  see BAJI (7th ed.)   No. 7.32.5.)

 While we recognize that in a proper case a jury is permitted to infer the existence of the element of malice from a want of probable cause for prosecution (Runo v. Williams (1912) 162 Cal. 444, 450, 122 P. 1082;  5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 429, p. 511), a favorable termination may not be inferred from a lack of probable cause.3  A finding of malice is based on the improper motive of a defendant in bringing an action.  (Centers v. Dollar Markets (1950) 99 Cal.App.2d 534, 541, 222 P.2d 136.)   A favorable termination of a criminal action, however, derives from the opinion of either a trial court or prosecuting agency that said action lacks merit and, if pursued, would result in a decision in favor of the accused.   (Lackner v. Lacroix, supra, 25 Cal.3d at p. 750, 159 Cal.Rptr. 693, 602 P.2d 393.)

 Accordingly, to establish that a criminal proceeding which was dismissed in the interest of justice amounted to a favorable termination, a plaintiff must show the dismissal resulted from a determination by a trial court or prosecutor that the action lacked merit.

a. Bare order of dismissal in the interests of justice without further evidentiary showing does not establish termination of underlying case was of such nature as to indicate plaintiff's innocence.

 In De La Riva v. Owl Drug Co. (1967) 253 Cal.App.2d 593, 599, 61 Cal.Rptr. 291, as in the instant case, the only stated ground for the order dismissing the underlying criminal proceeding against the malicious prosecution plaintiff was “ ‘in the interests of justice.’ ”

Following the dismissal, the plaintiff brought an action for malicious prosecution.   The defendants interposed an affirmative defense that plaintiff, after being held to answer, unsuccessfully moved to quash the information (Pen.Code, § 995) and thereafter failed to seek review by writ of prohibition or otherwise;  that inherent in the order of plaintiff's commitment for trial was a finding of probable cause to believe him guilty of the offenses charged, so as to estop him from maintaining an action for malicious prosecution as to matters which were res judicata.   The trial court upheld the defense and the plaintiff appealed.  (De La Riva, supra, 253 Cal.App.2d at pp. 594–595, 61 Cal.Rptr. 291.)

 The De La Riva court reversed and remanded, concluding the affirmative defense did not bar the plaintiff's malicious prosecution claim.  (De La Riva, supra, at p. 600, 61 Cal.Rptr. 291.)4

With respect to the requirement of a favorable termination, De La Riva declined to determine whether the dismissal warranted a finding of a termination favorable to the plaintiff, and remanded for a factual determination of that issue.   It stated:  “In the light of the meager showing on the instant point by all parties to the present appeal, we would experience some difficulty in determining whether the dismissal in question tends to indicate the innocence of the accused and, in such circumstances, would warrant a finding of a termination favorable to plaintiff.   The term ‘In the interests of justice’ implies considerations which would favor each side to this litigation.”  (De La Riva, supra, 253 Cal.App.2d at pp. 599–600, 61 Cal.Rptr. 291, italics added.)

Similarly, no favorable termination was shown in Oppenheimer v. Tamblyn (1958) 162 Cal.App.2d 293, 327 P.2d 574.   In that case, the plaintiff sought to recover for malicious prosecution, alleging:  “ ‘After due proceedings had in [the underlying] criminal prosecution, it was dismissed, and plaintiff's bail was exonerated.’ ”  (Id., at p. 295, 327 P.2d 574.)  Oppenheimer held the complaint failed to state a cause of action because it did not disclose the ground for dismissal of the criminal proceeding and therefore it alleged no facts from which it could be concluded the prior proceeding terminated favorably to the plaintiff.  (Id., at p. 296, 327 P.2d 574.)

In marked contrast to De La Riva and Oppenheimer is Jackson v. Beckham (1963) 217 Cal.App.2d 264, 270, 31 Cal.Rptr. 739, wherein the dismissal on its face showed “lack of sufficient evidence and in the interests of justice the complaint was dismissed.”   On this showing, the Jackson court held the jury in the malicious prosecution action “had a right to believe that it was because of a lack of evidence of plaintiff's guilt that the case was dismissed, and accordingly there was a termination favorable to defendant in the criminal action although the [conflicting] evidence may have well supported a contrary finding.  [Citation.]”  (Ibid.)

Similar to Jackson is Bulkley v. Klein (1962) 206 Cal.App.2d 742, 750, 23 Cal.Rptr. 855, wherein a docket entry was made showing “the case was dismissed for lack of evidence[.]”  Based thereon, Bulkley concluded:  “A final termination of the criminal case favorable to the [malicious prosecution] plaintiff was thus proved.  [Citation.]”  (Ibid.)

2. Trial court erred in submitting malicious prosecution count to jury.

USC contends the trial court erred in submitting Farajpour's malicious prosecution count to the jury because there was insufficient evidence to support a finding that the criminal proceeding resulted in a favorable termination, i.e. the section 1385 dismissal in the interest of justice was not of such a nature as to indicate Farajpour's innocence.

Farajpour counters the issue is one of fact for the jury, and that there was sufficient evidence from which the jury could infer a favorable termination.

a. Standard for directed verdict.

 To determine whether USC was entitled to a directed verdict on the malicious prosecution count, we note the applicable standard:

“[A] directed verdict may be granted ‘only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given.’  [Citations.]  ․ A motion for a directed verdict is in the nature of a demurrer to the evidence, and is governed by practically the same rules,․  In other words, the function of the trial court on a motion for a directed verdict is analogous to and practically the same as that of a reviewing court in determining, on appeal, whether there is evidence in the record of sufficient substance to support a verdict.”  (Estate of Lances (1932) 216 Cal. 397, 400–401, 14 P.2d 768;  see 7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 409, p. 412.)

Applying this standard to the evidence adduced at trial to be considered in the light of the law governing malicious prosecution actions, we conclude USC was entitled as a matter of law to a directed verdict on the malicious prosecution count.

b. No showing the dismissal of underlying criminal case on prosecutor's motion was based on a determination of Farajpour's innocence.

 USC avers that Farajpour merely showed the underlying criminal proceeding was dismissed in the interest of justice, but he did not present any evidence as to what motivated the prosecutor to move for a dismissal of his case.   In this regard, Farajpour testified he did not know why the deputy city attorney decided to drop the charges against him.   USC urges the dismissal thus was unexplained.

Farajpour argues he presented substantial evidence of a favorable termination because (1) he proved USC instituted the battery charge without probable cause and with malice, and (2) the deputy city attorney moved to dismiss the criminal charges after a lengthy conference with him, during which time she reviewed the file and questioned him about the incident.

 A bare dismissal “ ‘[i]n the interests of justice’ ”, as was had here, implies considerations favorable to either party.  (De La Riva, supra, 253 Cal.App.2d at p. 600, 61 Cal.Rptr. 291.)   We recognize as a general matter there is a “ ‘natural assumption that one does not simply abandon a meritorious action once instituted.’ ”  (Lackner v. LaCroix, supra, 25 Cal.3d at p. 751, 159 Cal.Rptr. 693, 602 P.2d 393.)   However, a dismissal of a pending criminal proceeding in the interest of justice under section 1385 is decidedly ambiguous and is not an adjudication that the charged offense has not been committed.  (§ 1385;  De La Riva, supra, at p. 600, 61 Cal.Rptr. 291;  People v. Simpson (1944) 66 Cal.App.2d 319, 329, 152 P.2d 339.)

In Lackner v. Lacroix, supra, 25 Cal.3d at p. 750, 159 Cal.Rptr. 693, 602 P.2d 393, in discussing favorable termination, the Supreme Court stated:  “termination must reflect on the merits of the underlying action.   [Citation.]  ․ ‘In some instances the manner of termination reflects the opinion of the court that the action lacks merit, as where the criminal proceedings are dismissed for lack of sufficient evidence of guilt following a preliminary hearing.  [Citation omitted.]   In others, the termination reflects the opinion of the prosecuting party that, if pursued, the action would result in a decision in favor of the defendant, as where the district attorney seeks dismissal of the prosecution of a criminal action for lack of evidence [citations omitted] or where the plaintiff in a civil proceeding voluntarily dismisses the action [citations omitted].’ ”  (Italics ours, original italics deleted.)

Due to a prosecutor's broad discretion in deciding whether prosecution of an alleged crime will serve the public interest, on this record it cannot be inferred that the prosecutor moved for dismissal because of a determination the action would terminate in Farajpour's favor.   Some factors that bear on a decision to proceed or to dismiss include “the nature of the offense, the nature and severity of the sanctions that will be imposed upon conviction, the personal circumstances of the accused, the expense of prosecution and congestion in the courts.  [Fn. omitted.]”  (Hoines v. Barney's Club, Inc. (1980) 28 Cal.3d 603, 614, 170 Cal.Rptr. 42, 620 P.2d 628 (dis. opn. of Tobriner, J.).)

Thus, the instant section 1385 dismissal in the interest of justice “ ‘not only [was] not on the merits, it [was] unreflective of the merits;  neither the judgment of the court nor that of the prosecuting party on the merits [was] implicated in the dismissal.’ ”  (Lackner, supra, 25 Cal.3d at p. 750, 159 Cal.Rptr. 693, 602 P.2d 393.)

c. A favorable termination reflecting innocence cannot be inferred from other elements of malicious prosecution.

 Unable to explain the prosecutor's motivation in seeking dismissal, Farajpour attempts to rely on the other elements of malicious prosecution allegedly proven here, lack of probable cause and malice, to show a favorable termination.   In essence, Farajpour argues USC instituted the criminal proceeding without probable cause and with malice, and speculates that the deputy city attorney came to realize Farajpour was innocent and the action had no merit, and therefore moved to dismiss.

Farajpour's argument is unpersuasive because it glosses over the lack of evidence to support a finding of favorable termination.   Under his analysis, once a jury finds lack of probable cause, it could bootstrap that finding to construe an ambiguous dismissal to be a favorable termination reflecting the accused's innocence.   However, while a jury may find insufficient evidence to support probable cause, it does not follow a prosecutor in the underlying case necessarily reached the same conclusion.   If the jury could utilize lack of probable cause to conclude a dismissal in the interest of justice amounted to a favorable termination, the requirement of a favorable termination as a discrete element of the tort of malicious prosecution would be nullified.   Such an approach is inconsistent with the continued disfavored status of the tort of malicious prosecution, “the elements of [which] have historically been carefully circumscribed[.]”  (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 872, 254 Cal.Rptr. 336, 765 P.2d 498.)

The trial court's failure to recognize the manner in which a favorable termination of the underlying criminal case must be proven resulted in its erroneous submission of the malicious prosecution count to the jury.

3. Error in instructing on malicious prosecution was prejudicial and therefore requires retrial as to remaining counts.

 As indicated, the sharply conflicting evidence went to the jury on all four causes of action and it returned a general verdict.   In view of such verdict, we are unable to ascertain whether the improper malicious prosecution count or Farajpour's other theories formed the basis for the jury's imposition of liability on USC, nor how damages were allocated, if at all, among the various theories.

 Generally, where there are several counts or causes of action, a general verdict will stand if the evidence supports it on any one sufficient count.  (DeTomaso v. Pan American World Airways, Inc. (1987) 43 Cal.3d 517, 533, 235 Cal.Rptr. 292, 733 P.2d 614.)   However, where a trial court commits instructional error, and “it seems probable that the jury's verdict may have been based on the erroneous instruction, prejudice appears, and this court should not speculate upon the basis of the verdict.  [Citation.]”  (Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 471, 62 Cal.Rptr. 577, 432 P.2d 193;  accord Luque v. McLean (1972) 8 Cal.3d 136, 146–147, 104 Cal.Rptr. 443, 501 P.2d 1163;  Cobbs v. Grant (1972) 8 Cal.3d 229, 238, 104 Cal.Rptr. 505, 502 P.2d 1;  LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 875–876, 148 Cal.Rptr. 355, 582 P.2d 946.)5

Here, the jury was instructed, inter alia, that “[f]avorable termination of the prior criminal prosecution means that the termination was of such a nature as to indicate the innocence of the plaintiff in a prior criminal prosecution.”   Presented with that instruction, and with evidence the criminal battery was dismissed in the interest of justice, it is reasonably probable the jury erroneously construed the dismissal to be an exoneration of Farajpour, and proceeded to find in Farajpour's favor on the malicious prosecution count.

 Further, according to Farajpour, he sustained emotional distress as a consequence of the criminal prosecution.   As a result, the jury's $200,000 award of compensatory damages may have been based in part on that testimony.   In addition, assuming the jury found for Farajpour on the malicious prosecution count, it is reasonably probable the jury allocated a substantial portion of the $800,001 punitive damage award to that count.   Because we cannot speculate that the verdict rests upon the other counts, and it appears reasonably probable the verdict rests, at least in part, on the trial court's error in instructing on the malicious prosecution count, the general verdict cannot stand.

a. General verdict cannot be upheld under rule of Gillespie v. Rawlings (1957) 49 Cal.2d 359, 317 P.2d 601 because evidence as to remaining counts was conflicting.

In Gillespie, a real estate broker took her employee on a drive to enable the employee to familiarize herself with the market in a certain area.   Following an automobile accident, the employee brought a personal injury action against the broker.   One count of the complaint alleged the plaintiff was a passenger for consideration and the second count alleged the broker was guilty of willful misconduct.   The jury returned a general verdict for the employee and the broker appealed.  (Gillespie, supra, 49 Cal.2d at pp. 360–363, 317 P.2d 601.)

The Supreme Court held the jury properly could conclude the employee was a passenger, not a guest, but the evidence was insufficient to support a finding of willful misconduct.  (Gillespie, supra, 49 Cal.2d at p. 368, 317 P.2d 601.)   It then addressed whether the judgment could be affirmed on the assumption the verdict was based upon the valid count.  (Id., at pp. 368–369, 317 P.2d 601.)   It observed “[t]he conclusion that plaintiff was a passenger rather than a guest flows from facts as to which there is no substantial dispute ․  [The broker] did not, and apparently could not, dispute the significant facts.   Under these circumstances the error in submitting to the jury the issue of wilful misconduct cannot be prejudicial.   On such a record it may be assumed that the jury understood the instructions and correctly applied them to the evidence [citations], and that the verdict for plaintiff was based upon a determination that she was a passenger, not upon a determination that defendant was guilty of wilful misconduct.   [Citations.]”  (Id., at p. 369, 317 P.2d 601, italics added;  accord Tucker v. Landucci (1962) 57 Cal.2d 762, 766, 22 Cal.Rptr. 10, 371 P.2d 754;  compare Clark v. Gibbons (1967) 66 Cal.2d 399, 415, fn. 1, 58 Cal.Rptr. 125, 426 P.2d 525 (conc. opn. of Tobriner, J.).) 6

 It is clear from our reading of Gillespie its upholding of the verdict rests upon its determination the evidence as to the valid count was essentially uncontroverted so that no other verdict was possible as a matter of law.7

However, Posz v. Burchell (1962) 209 Cal.App.2d 324, 336, 25 Cal.Rptr. 896, explains Gillespie 's upholding of the verdict in the following terms:  “[T]he judgment was nevertheless affirmed, because the evidence was deemed sufficient to support a finding that compensation had been given and that the defendant had been negligent.”  (Italics ours.)   The Posz court declared the rule of Gillespie “may be stated as follows:  Where several counts or issues are tried, a general verdict will not be disturbed by an appellate court if a single one of such counts or issues is supported by substantial evidence and is unaffected by error, although another is also submitted to the jury without any evidence to support it and with instructions inviting a verdict upon it.”  (Posz, supra, 209 Cal.App.2d at pp. 335–336, 25 Cal.Rptr. 896;  accord McCloud v. Roy Riegels Chemicals (1971) 20 Cal.App.3d 928, 935–936, 97 Cal.Rptr. 910.)

Thus, the Posz court inappropriately broadened Gillespie 's test for harmless instructional error.   Under Gillespie, erroneous instructions as to one count are harmless only if the evidence as to an alternate count is without conflict.  Posz deems instructional error as to one count to be harmless if an alternate count is supported by substantial evidence, which obviously is far removed from the Gillespie standard.

On this record, the general verdict cannot be upheld under the Gillespie rationale.   Pursuant to the general rule on appeal, we have set forth the evidence, ante, in the light most favorable to Farajpour.   Despite the apparent harmony in our introductory factual recitation, this case was tried on sharply conflicting evidence.   To cite but two examples, while Farajpour maintained he was arrested without probable cause, it was USC's position that Farajpour was arrested for battering Cochran, a uniformed security guard doing his job.   Similarly, while Farajpour testified USC attempted to coerce him into refraining from filing a civil suit, according to USC, it merely offered to drop the charges if Farajpour were to proceed no further.

Because the evidence as to the various counts is intertwined with the evidence on the malicious prosecution count, and the evidence as to the remaining counts is substantially in conflict, the verdict cannot be upheld under the Gillespie rule.

4. Trial court has sua sponte duty to require special verdicts or findings in appropriate cases.

 Code of Civil Procedure section 625 states in pertinent part:  “In all cases the court may direct the jury to find a special verdict in writing, upon all, or any of the issues, and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon.”

The facts of this case illustrate the utility of special verdicts or special findings.   Had the trial court exercised its discretion to direct special verdict forms to the jury, we would not have had to inquire as to which of several possible alternate theories the jury relied on to reach its verdict.   Because USC's remaining contentions are without merit as determined below, we simply could have stricken the damages allocated to the malicious prosecution count and upheld the remainder of the award, and thereby eliminated the need for a retrial.   Particularly in view of the recurring issue of whether Farajpour had shown a favorable termination, which issue likely would be raised on appeal, the trial court should have required a special verdict on the malicious prosecution count.

Due to the lack of special verdicts or special findings, this case is now in a posture of a frustrating delayed resolution to Farajpour, and a reversal with a costly and time-consuming new trial.

McCloud v. Roy Riegels Chemicals, supra, 20 Cal.App.3d at pages 936–937, 97 Cal.Rptr. 910, observed it is “not deluded as to the reason why trial counsel do not favor use of such forms.   Disuse does not stem from ignorance of their availability.   Trial counsel shun them, adopting the same strategy which prompts reluctance ․ to have the judge talk about the weaknesses of their case․  When a special form taken into the jury room will focus special jury attention narrowed to a particular matter—a matter which the lawyer would prefer to have that jury gloss over or paint with a broad brush—its use is avoided.   The law should frown on the playing of games by the trial advocate.   Tricks are unnecessary to the preservation of the adversary system as we have learned, for example, in the formulation of the modern discovery rules.   The too-frequent instances in which astucity is tolerated are fields for procedural reform.   Parties should have one chance (by request for special verdict forms) to have a jury's fact finding pinpointed.   They should not be permitted to drag out litigation through the appellate courts by turning their backs upon safeguards afforded by the Legislature.   When a general verdict is returned under circumstances where a special verdict might have been used, appellate courts have to guess which of several possible alternate routes the jury traveled to reach its destination.   As this opinion is being written another thing this court must leave to conjecture is just how many appellate court hours are salvaged when we are spared that guessing game.”

In marked contrast to McCloud is Hathaway v. Spiro (1985) 164 Cal.App.3d 359, 210 Cal.Rptr. 421, which disfavors the use of special findings or special verdicts.  Hathaway involved a jury trial of a malpractice action against three physicians and a hospital brought by a husband and wife.   The trial court found the general verdicts and special findings to be inconsistent with each other.  (Id., at pp. 360–363, 210 Cal.Rptr. 421.)   To resolve the inconsistency, the trial court granted the plaintiffs' unopposed motion to dismiss the hospital and the exonerated physician.  (Id. at p. 363, 210 Cal.Rptr. 421.)   The reviewing court affirmed on the ground the appellants had remained silent when the motions to dismiss were made and granted and therefore could not be heard to complain.  (Id., at pp. 366–367, 210 Cal.Rptr. 421.)

In conclusion, Hathaway declared:  “An ambiguous or inconsistent finding or verdict presents a problem for a trial judge demanding immediate solution.   The interests of all involved—the parties, counsel and the court—are advanced by the avoidance of such problems whenever possible.   Toward this end we advise that special findings be requested of juries only when there is a compelling need to do so.   Absent strong reason to the contrary their use should be discouraged.”  (Hathaway v. Spiro, supra, 164 Cal.App.3d at p. 367, 210 Cal.Rptr. 421.)

We strongly differ with the view of the Hathaway court.   While Hathaway prefers general verdicts which may shroud obvious flaws in a jury's decision making, we agree with McCloud that “truth ascertainment at trial would, ․ be improved were a jury required thus to analyze its own thought processes․”  (McCloud, supra, 20 Cal.App.3d at p. 937, 97 Cal.Rptr. 910.)

Further, the notorious delay and congestion at the trial court level indeed present “strong reason to the contrary” in favor of employing special verdicts.  (Hathaway, supra, 164 Cal.App.3d at p. 367, 210 Cal.Rptr. 421.)   At a time when all courts are confronted with overwhelming dockets, broader use of special verdicts would assist in relieving the clog in the courts.  “ ‘Well-conceived special verdicts simplify and often eliminate issues on appeal.’ ”   (McCloud, supra, 20 Cal.App.3d at p. 937, 97 Cal.Rptr. 910.)   More importantly, special verdicts or findings can obviate the need for a retrial, as would have been the case here.

Accordingly, trial courts should not accede to trial counsel who may seek to hide behind general verdicts so as to gloss over weaknesses in their case.   Where a retrial may be avoided through the simple step of requiring special verdicts or special findings, we deem the use of a general verdict as a tactical choice to be a luxury the administration of justice can no longer afford.

Therefore, where there is such conflict in the evidence on two or more causes of action that it cannot be determined from a general verdict as to which causes of action the jury found for the plaintiff, the trial court, sua sponte, should direct special verdict forms or special interrogatories to require the jury to indicate its decision on each of the issues to be resolved as to each such cause of action.   While the direction of special verdicts is a matter within the trial court's discretion (Ferro v. Citizens Nat. Trust & Sav. Bank (1955) 44 Cal.2d 401, 414, 282 P.2d 849), the failure to require special verdicts or special findings in appropriate cases constitutes an abuse of that discretion.

5. USC's remaining contentions.

In view of the necessity for a retrial, we pass upon the remaining issues presented upon appeal only as necessary to the final determination of the case.  (Code Civ.Proc., § 43.)

a. Stare decisis precludes our examination of the constitutionality of punitive damages.

USC invites this court to address whether the jury's $800,001 punitive damage award violates the United States Constitution because (1) it imposes a criminal penalty without affording USC the protections of a criminal defendant and (2) the standards for awarding punitive damages are impermissibly vague.   USC submits that in light of Browning–Ferris v. Kelco Disposal (1989) –––U.S. ––––, 109 S.Ct. 2909, 106 L.Ed.2d 219 (which held the excessive fines clause of the Eighth Amendment does not apply to awards of punitive damages in cases between private parties), a majority of the United States Supreme Court is now inclined to declare unconstitutional on federal due process grounds awards of punitive damages in any amount when returned under statutes such as Civil Code section 3294 (section 3294).   As discussed below, in view of controlling California Supreme Court authority on this issue, USC's argument in not properly raised in this court.

Section 3294 originally was enacted in 1872 and codified the common law of punitive damages.  (Bertero v. National General Corp., supra, 13 Cal.3d at p. 66, fn. 13, 118 Cal.Rptr. 184, 529 P.2d 608.)   The statute provides in relevant part:  “(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

In Toole v. Richardson–Merrell Inc. (1967) 251 Cal.App.2d 689, 716, 60 Cal.Rptr. 398, the appellant argued a punitive damage award violated its rights under the California and United States Constitutions because it imposed a penal judgment without benefit of the constitutional safeguards accorded criminal defendants.   The Toole court rejected the contention, reasoning that although respondent's action demanded punitive damages as part of the relief sought, the action was purely civil in nature.   Accordingly, the appellant could not invoke the constitutional guarantees applicable in criminal cases.   (Id., at pp. 716–717, 60 Cal.Rptr. 398.)

Toole has been cited approvingly by the California Supreme Court in summarily rejecting constitutional challenges to section 3294.  (See e.g. Bertero, supra, 13 Cal.3d at p. 66, fn. 2, 118 Cal.Rptr. 184, 529 P.2d 608;  Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 819–820, 169 Cal.Rptr. 691, 620 P.2d 141;  Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 402, fn. 2, 185 Cal.Rptr. 654, 650 P.2d 1171.)   As an intermediate appellate court, we are bound by that determination.8

Birkhofer v. Krumm (1938) 27 Cal.App.2d 513, 81 P.2d 609, confronted a similar situation in that the Court of Appeal was urged to diverge from California Supreme Court authority due to developments in United States Supreme Court decisional law.  Birkhofer observed a recent United States Supreme Court opinion had undermined the reasoning adopted by all courts of appellate jurisdiction in this state in holding the application of a certain California statute would contravene the contract clause of the federal Constitution and the cognate provision of the California Constitution.  (Id. at p. 536, 81 P.2d 609.)   Nonetheless, Birkhofer declined to depart from California precedent, explaining it is the function of the California Supreme Court, rather “than of any state court subordinate to it, to announce changes in what has hitherto been treated within the state as the settled law with respect to the constitutionality [under the United States Constitution] of a given application of a state statute, unless indeed there be so exact a parallel between a particular case presented and a controlling decision of a federal court, that no reasonable distinction between them can be made.”   (Birkhofer v. Krumm, supra, 27 Cal.App.2d at p. 537, 81 P.2d 609.)

Here, not only has the United States Supreme Court not declared punitive damages constitutionally infirm, but USC merely speculates as to how that court might rule in the future.   Thus, while Browning–Ferris may portend a United States Supreme Court reexamination of the constitutionality of punitive damages, USC's contention cannot properly be addressed to any court subordinate to the California Supreme Court.  (See Orange County Water District v. City of Riverside (1959) 173 Cal.App.2d 137, 165–166, 343 P.2d 450.)  “We are not permitted to violate stare decisis for the sake of straws in the wind.   Our duty as an intermediate appellate court is to follow the decisional law laid down by the state Supreme Court.   We violate jurisdictional bounds when we do otherwise.  (Auto Equity Sales, Inc. v. Superior Court [1962] 57 Cal.2d 450 [20 Cal.Rptr. 321, 369 P.2d 937].)”   (Beckman v. Mayhew (1975) 49 Cal.App.3d 529, 535, 122 Cal.Rptr. 604.)

b. USC's failure to request more specific instruction precludes it from complaining of malice instruction which was given.

 Section 3294, authorizing punitive damages where a defendant has been guilty of oppression, fraud or malice, provides at subdivision (c):  “As used in this section, the following definitions shall apply:  ¶ (1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  (Italics ours.)

The italicized language was inserted by a 1987 amendment which revised the definition of malice.  (Stats.1987, ch. 1498, § 5;  Historical Note, 12 West's Ann.Civ.Code (1990 Cumulative Pocket Part) foll. § 3294, p. 16.)   The 1987 amendment applies to actions in which the initial trial did not commence before January 1, 1988 (§ 3294, subd. (e)) and therefore is applicable here.

Pursuant to BAJI No. 14.71, which reflects the 1987 amendment, the trial court instructed the jury as follows:  “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscience [sic] disregard of the rights of others.   A person acts with conscious disregard of the rights of others when he is aware of the probable dangerous consequences of his conduct and willfully and deliberately fails to avoid those consequences.”  (Italics added.)

Thus, the definition of malice which was given to the jury mirrors the language of section 3294, subdivision (c)(1), quoted above.   Nonetheless, USC contends the instruction amounted to prejudicial error because the trial court failed to define the new, stricter standard of “willful and conscious disregard” and instead merely defined “conscious disregard”.   USC argues the Legislature's addition of “willful and” before “conscious disregard” cannot be treated as surplusage, and the error was prejudicial because it permitted the jury to award punitive damages under circumstances which would be impermissible under the current language of section 3294.

 USC's contention is without merit.   It is not error to instruct in the express words of a statute, as was done here.   (Harris v. Belton (1968) 258 Cal.App.2d 595, 614–615, 65 Cal.Rptr. 808;  Garrison v. Pearlstein (1924) 68 Cal.App. 334, 340, 229 P. 351;  Pemberton v. Arny (1919) 42 Cal.App. 19, 24, 183 P. 356.)   If USC believed “the terms of the statute [to be] ambiguous and open to conflicting constructions, [it] might have asked the court to interpret it to the jury.”   (Pemberton, supra, at p. 24, 183 P. 356.)   USC did not do so.   In a civil case, “ ‘ “if the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, [the party] must request the additional or qualifying instruction in order to have the error reviewed.” ’  [Citation.]”  (Dorsic v. Kurtin (1971) 19 Cal.App.3d 226, 239, 96 Cal.Rptr. 528;  see Willden v. Washington Nat. Ins. Co. (1976) 18 Cal.3d 631, 636, 135 Cal.Rptr. 69, 557 P.2d 501.)   The trial judge was under no duty to act as advisory or “backup” counsel for USC's attorneys.   (See Dorsic v. Kurtin, supra, at p. 239, 96 Cal.Rptr. 528;  Gagosian v. Burdick's Television & Appliances (1967) 254 Cal.App.2d 316, 318, 62 Cal.Rptr. 70.)   Due to USC's failure to request a clarifying instruction, it cannot be heard to complain in this regard on appeal.

Presumably, on retrial, should USC find BAJI No. 14.71 to be incomplete, it will propose a more specific instruction.

CONCLUSION

The dismissal of a criminal prosecution in the interest of justice implies considerations favorable to either party.   In addition, a prosecutor has broad discretion in deciding whether prosecution of an alleged crime will serve the public interest and numerous considerations may lead to a decision to move for dismissal.   Thus, to establish a favorable termination of a criminal prosecution which was dismissed in the interest of justice, a plaintiff bringing a disfavored malicious prosecution action must show either “ ‘the judgment of the [trial] court [or] that of the prosecuting party on the merits [was] implicated in the dismissal.’ ”  (Lackner v. Lacroix, supra, 25 Cal.3d at p. 750, 159 Cal.Rptr. 693, 602 P.2d 393.)

Further, while malice may be inferred from a lack of probable cause, a favorable termination cannot be inferred from a lack of probable cause.   Unlike malice, which is based upon the improper motive of a defendant in bringing an action, a favorable termination of a criminal proceeding derives from the opinion of either a trial court or a prosecuting agency that the action lacks merit.

Lastly, where it cannot be determined from a general verdict as to which causes of action the jury found for the plaintiff, and where a retrial might be avoided through the use of special verdicts or special findings, a trial court has a sua sponte duty to direct such forms of special verdict or special interrogatories as will require the jury to indicate its decision as to each of the issues to be resolved with respect to each such cause of action.

DISPOSITION

The judgment is reversed with directions to enter judgment in favor of USC on the malicious prosecution count and for a new trial as to the remaining counts.

Each party to bear respective costs.

FOOTNOTES

1.   Although there was substantial conflict in the evidence, in accordance with the general rule on appeal, the evidence is set forth in the light most favorable to Farajpour, the respondent.  (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 492, fn. 1, 102 Cal.Rptr. 795, 498 P.2d 1043.)

2.   In addition to indicating the innocence of the accused, the requirement of a favorable termination also serves to prevent a collateral attack upon the judgment of a duly constituted court.  (Murdock v. Gerth (1944) 65 Cal.App.2d 170, 177, 150 P.2d 489, criticized on other grounds in Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 878, fn. 7, 254 Cal.Rptr. 336, 765 P.2d 498.)

3.   “[I]f the defendant had no substantial grounds for believing in the plaintiff's guilt, but, nevertheless, instigated proceedings against him, it is logical to infer that his motive was improper.”  (5 Witkin, supra, Torts, § 429, p. 511.)

4.   The fact a plaintiff was held to answer by the committing magistrate is prima facie evidence of probable cause, but it is not conclusive evidence the defendant had probable cause to institute a prosecution against the plaintiff.  (Diemer v. Herber (1888) 75 Cal. 287, 290, 17 P. 205;  Johnson v. Southern Pacific Co. (1910) 157 Cal. 333, 339, 107 P. 611;  see 5 Witkin, Summary of Cal.Law, supra, Torts, § 427, p. 509.)However, if a plaintiff were convicted in a criminal trial, such disposition conclusively establishes probable cause even if the conviction were reversed on appeal.  (Bealmear v. So. Cal. Edison Co. (1943) 22 Cal.2d 337, 340, 139 P.2d 20.)  (5 Witkin, Summary of Cal.Law, supra, Torts, § 427, p. 510.)

5.   See also Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 643, 220 P.2d 897, holding general rule that judgment will be affirmed if there is substantial evidence to support verdict on any theory on which it might have been reached is inapplicable if erroneous instruction precluded jury from considering a valid theory which might have led to a different result.

6.   Gillespie was criticized on other grounds in Nevarez v. Carrasco (1969) 1 Cal.3d 518, 522, footnote 3, 82 Cal.Rptr. 721, 462 P.2d 577, and in Bozanich v. Kenney (1970) 3 Cal.3d 567, 571, 91 Cal.Rptr. 286, 477 P.2d 142.

7.   See also Nunneley v. Edgar Hotel (1950) 36 Cal.2d 493, 502, 225 P.2d 497 (dis. opn. of Traynor, J.):  “If there are two independent grounds upon which a verdict may have been based, erroneous instructions as to one ground will not justify reversal if it clearly appears that the verdict was based upon the other ground.  [Citation.]  Thus, there need be no reversal if such other ground is established as a matter of law [citation], as, for example, by ‘facts that are admitted as proved beyond controversy’ [citation].   If the evidence with respect to such other ground is substantially in conflict, however, it is impossible to determine whether the jury based its verdict thereon or relied instead upon the ground upon which they were erroneously instructed.   It is settled that in such a case the error is prejudicial.  [Citations.]”

8.   Further, three years ago, this division in Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (1987) 189 Cal.App.3d 1072, 1101, 234 Cal.Rptr. 835, rejected a similar argument, relying on Toole to hold where an action is civil in nature, civil rules rather than criminal rules of procedure apply.

KLEIN, Presiding Justice.

DANIELSON and CROSKEY, JJ., concur.